1. The Committee has considered
the instruments set out in the Annex to this Report and has determined
that the special attention of both Houses does not require to
be drawn to any of them.
2. A memorandum from the Lord
Chancellor's Department in connection with the Court of Protection
(Amendment) Rules 1999 (S.I. 1999/2504) is printed in Appendix
DANGEROUS SUBSTANCES AND PREPARATIONS (SAFETY) (CONSOLIDATION) (AMENDMENT) REGULATIONS 1999 (S.I. 1999/2084).
3. The Committee draws the special
attention of both Houses to these Regulations on the ground that
they make an unexpected use of the power under which they are
4. The Regulations are made
under powers contained in the Consumer Protection Act 1987, and
make provision to implement Commission Directive 97/64/EC. Regulation
2(b) of the present Regulations inserts a new regulation 3A in
the Dangerous Substances and Preparations (Safety) (Consolidation)
Regulations 1994 (S.I. 1994/2844). Paragraph (2) of new regulation
3A prohibits the supply of certain liquid substances and preparations
("liquids") capable of being used as fuel in decorative
lamps where they contain perfume or colouring agent. Paragraph
(5) provides that this prohibition on supply does not apply to
paraffin to which a colouring agent has been added solely in order
to distinguish it for safety reasons from another liquid, so long
as it is not intended for use as fuel in decorative lamps. The
Directive, on the other hand, does not contain such an exemption.
Accordingly, the Committee asked for an explanation as to what
provision in the Directive justified this exemption.
5. The Department, in the two
memoranda printed in Appendix 2, seek to justify the exemption
in question on the ground that it is consistent with the purpose
of the Directive, which is to provide for consumer safety. They
contend that, since the removal of the exemption would significantly
increase the risk to consumers, the Directive cannot have been
intended to have that result, and consequently it should not be
interpreted so as to produce that result.
6. The Committee is not persuaded
by the Department's explanation. The Directive only permits an
exemption from the prohibition in circumstances where "fiscal
reasons" are present. In any other case, the prohibition
applies to a liquid which "can be used as fuel" in decorative
lamps and thus to paraffin. The Directive does not distinguish
between liquids which are intended for use as fuels in decorative
lamps and those which are not. It suffices that liquid is capable
of such use. Nor does the Directive permit an exemption to enable
colouring agents to be added for the purpose of distinguishing
the liquid. Since the aim of the Directive is to control the marketing
of coloured liquids for the purpose of protecting consumers, the
Department's reliance on its general purpose must necessarily
be subject to the terms of the Directive itself. The Committee
considers that the Regulations have not sufficiently implemented
the Directive and reports the Regulations on the ground that they
make an unexpected use of the powers conferred.
1999 (S.I. 1999/2567).
7. The Committee draws the special
attention of both Houses to these Regulations on the grounds that
they contain unnecessarily referential legislation; are defectively
drafted; and that they require elucidation.
8. Regulation 2(2) defines "pleasure
vessel" as having the meaning given to it by the Merchant
Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations
1998 (S.I. 1998/2771). The Committee asked the Department
of the Environment, Transport and the Regions to explain why the
definition was not set out in full.
9. In a memorandum printed in
Appendix 3, the Department state that, in view of the length and
complexity of the full definition, it was thought convenient to
shorten the drafting of the present Regulations. They also state
that a reference back to the earlier Regulations helpfully indicates
that these considerations are outweighed by the inconvenience
to the reader of having to refer to another instrument solely
for the purpose of finding the meaning of "pleasure vessel".
The Committee also notes that in two subsequent instrumentsS.I.
1999/2721 and 2722the Department have adopted the more
helpful course of setting out the definition of "pleasure
vessel" in full. The Committee reports regulation 2(2) on
the ground that it contains a definition drafted in an unnecessarily
10. Regulations 6(2) and 7(1)
impose duties on the master, owner, and any other "relevant
person or corporate body" to provide information about, and
to keep certain material relevant to, an accident. The Committee
asked for an explanation of the description of person intended
to be caught by that expression. The memorandum from the Department
explains this point and the Committee accordingly reports this
provision for the elucidation provided by the Department's Memorandum.
11. Regulations 6(2) and 7(1)
include the expression "person or corporate body". The
Committee asked the Department to explain the need for the words
"or corporate body", in view of the definition of "person"
in the Interpretation Act 1978 as including a corporate body of
persons. The Department accept that the inclusion of the phrase
was an error and have noted it for the future. The Committee accordingly
report this provision for defective drafting, acknowledged by
1999 (S.I. 1999/2487)
1999 (S.I. 1999/2488)
12. The Committee draws the
special attention of both Houses to these Regulations on the ground
that they are drafted in an unecessarily referential way.
13. The Committee asked the
Treasury why Regulation 2 of both sets of Regulations provides
that the phrase "the Contributions and Benefits Act"
has the same meaning as in certain previous Regulations. In the
memorandum printed in Appendix 4 the Treasury accept that Regulation
2 in each case should have set out the definition in full instead
of referring the reader to the earlier Regulations. The Committee
accordingly reports both Regulations on the ground that they contain
a definition drafted in an unecessarily referential manner.
ENVIRONMENTAL PROTECTION (RESTRICTION ON USE OF LEAD SHOT) (ENGLAND) REGULATIONS 1999 (S.I. 1999/2170).
14. The Committee draws the
special attention of both Houses to these Regulations on the ground
that in one respect there is a doubt as to their vires.
15. The Regulations are made
under powers contained in the Environmental Protection Act 1990.
Paragraph (2) of regulation 4 purports to empower authorised persons
to take any dead or injured wild bird, or to take samples of any
articles or substances found on land which he has power to enter,
and to cause any such bird or sample to be tested or analysed
(sub-paragraph (d)); and to take possession of any such bird or
sample and retain it for so long as is necessary for certain specified
purposes (sub-paragraph (e)).
16. The relevant empowering
provision is section 140 of the 1990 Act. Sub-section 3(c) (as
amended) enables regulations to confer powers corresponding to
those conferred by section 108 of the Environment Act 1995. Sub-section
(4) of that section of that Act lists the powers available to
an authorised person, which include the power to take samples
of any articles or substances found on the premises which he is
authorised to enter, cause the article to be dismantled or subjected
to any process or test, and to take possession of it and detain
it for certain specified purposes.
17. The Committee asked the
Department of the Environment, Transport and the Regions what
provision of either the 1990 Act or the 1995 Act authorises the
power conferred by Regulation 4(2) in relation to injured wild
birds, given that the relevant empowering provisions relate to
articles or subtances. The Committee drew attention to the observations
in a judicial decision in 1954Daly v Cannonto
the effect that in normal parlance a live creature cannot be regarded
as an article.
18. The Department have submitted
two memoranda, printed in Appendix 5. In their second memorandum,
they seek to place a restrictive interpretation on that decision.
They contend that it was concerned with the interpretation of
the words "no person who collects or deals in rags, old clothes
or similar articles" in section 154(1) of the Public
Health Act 1936, and that on normal principles of construction
"similar articles" needs to be read in the context
of "rags" and "old clothes"; and, on this
basis, the court held that a live goldfish was not an article.
19. In the Commitee's view,
the Department have misunderstood the decision. Section 154(1)
of the 1936 Act provides that "no person who collects or
deals in rags, old clothes or similar articles shall...sell
or deliver, whether gratuitously or not, any article or food or
drink to any person, or any article whatsoever to a person
under the age of fourteen years". It was accepted that the
respondent, who was a person who collected rags and was so engaged
at the material time, delivered a live goldfish to a boy under
14 in return for some rags. The issue before the court was not
whether a live goldfish was an "article" for the purposes
of the words "similar articles", but whether the rag
and bone man had committed an offence by delivering the goldfish
to the boy. This, in turn, depended on whether the goldfish fell
within the description "any article whatsoever". In
deciding that a live goldfish was not an "article" for
the purpose of those words, Lord Goddard CJ observed: "Would
anybody in common parlance talk about a goldfish as an article?
I do not think so....it is straining language to say that a goldfish
is an article." Another factor in the decision was that any
ambiguity in a penal statute is to be construed so as not to involve
the imposition of a penalty. Accordingly, the Committee do not
accept the Department's explanation of that case. In relation
to the two other English decisions cited in the Department's second
memorandum, the Committee do not think that they can be regarded
as being of general application, and also note that the actual
decision in the 1962 case that hatching eggs were not "articles"
for the purpose of the legislation under consideration does not
support the view that a live creature can (in the absence of some
specific indication to that effect in the legislation) be regarded
as an "article".
20. The Committee notes that
the 1995 Act does not define the word "article". If
Parliament had intended that "article" should be construed
as having a wider meaning than that in common parlance, the legislation
would have contained an express provision to the effect that "article"
included a live creature. Further, contravention of Regulation
4 is an offence. In considering the vires of that Regulation,
the court is likely to prefer a construction which would resolve
any ambiguity in the expression "article" against the
imposition of a penalty.
21. For all these reasons, the
Committee reports these Regulations to both Houses on the ground
that there is a doubt as to whether regulation 4(2)(d) and (e)
(to the extent that it makes provision for injured wild birds)
is intra vires.